Appeals court strikes down union poster rule

WASHINGTON — In another blow to the nation’s dwindling labor unions, an appeals court on Tuesday struck down a federal rule that would have required millions of businesses to put up posters informing workers of their right to form a union.

The U.S. Court of Appeals for the District of Columbia Circuit said the National Labor Relations Board violated employers’ free speech rights in in trying to force them to display the posters or face charges of committing an unfair labor practice.

Unions had hoped the posters would help them boost falling membership, but business groups argued that they were too one-sided in favor of unionization.

The court’s ruling is the latest success for business groups that have worked to prevent the NLRB from shifting the legal landscape in favor of labor unions, despite President Barack Obama’s appointment of several labor-friendly board members.

Earlier this year, the same appeals court threw into question hundreds of other NLRB decisions after finding that Obama’s recess appointments to the board were unconstitutional. The Obama administration is appealing that decision to the Supreme Court.

The poster rule would have required more than 6 million businesses to display an 11-by-17-inch notice in a prominent location explaining the rights of workers to join a union and bargain collectively to improve wages and working conditions. The posters also made clear that workers have a right not to join a union or be coerced by union officials.

The National Association of Manufacturers, U.S. Chamber of Commerce and other business groups complained that the regulation violated free speech rights by forcing employers to display labor laws in a way that some believed was too skewed in favor of unionization.

A three-judge panel of the court agreed, ruling that the National Labor Relations Act protects the rights of employers not to publish the government’s poster if they find the language in it objectionable. That protection is similar to the First Amendment freedom of speech, said Judge A. Raymond Randolph, who was appointed to the court in 1990 by President George H.W. Bush.

“First Amendment law acknowledges this apparent truth: all speech inherently involves choices of what to say and what to leave unsaid,” Randolph said.

Randolph’s decision was joined by Karen LeCraft Henderson, also a Bush appointee, and Janice Rogers Brown, who was appointed by Bush’s son, President George W. Bush.

“Today, manufacturers claim an important victory in the fight against an activist NLRB and its aggressive agenda,” said National Association of Manufacturers President and CEO Jay Timmons. “The poster rule is a prime example of a government agency that seeks to fundamentally change the way employers and employees communicate.”

NLRB spokesman Hank Breiteneicher said the board is reviewing the decision. The same rule is also being reviewed by the 4th U.S. Circuit Court of Appeals in Richmond, Va.

The board had argued that the rule was needed because many workers — including recent immigrants, high school students and other employees in nonunion workplaces — were not aware of their right to engage in collective bargaining.

Unions said the posters were needed to address widespread misunderstandings about labor law and many workers’ fear of exercising their rights under it.

AFL-CIO President Richard Trumka said the poster was no different from other official notices that employers are required to display explaining wage and hour rights, health and safety or discrimination laws.

“The court’s twisted logic finds that ‘freedom of speech’ precludes the government from requiring employers to provide certain information to employees,” Trumka said. “This is absurd: when workers know their rights, the laws work as intended.”

The rule was supposed to take effect last year, but the appeals court had blocked it after lower courts split on whether the rule was valid. A federal judge in Washington, D.C., found the poster rule was acceptable, but limited how it could be enforced. Another federal judge in South Carolina said the labor board exceeded congressional authority when it approved the poster requirement in 2011.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

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The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

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The First Amendment to the U.S. Constitution – the cornerstone of American democracy – is the focus of the National First Amendment Moot Court Competition. Recognized as one of the nation's finest constitutional-law competitions, this annual event features a current First Amendment controversy.

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